In re Adoption of Ulrich
| Decision Date | 09 January 2019 |
| Docket Number | No. 17-P-922.,17-P-922. |
| Citation | 94 Mass.App.Ct. 668,119 N.E.3d 298 |
| Parties | ADOPTION OF ULRICH (and Four Companion Cases). |
| Court | Appeals Court of Massachusetts |
Deborah D. Wolf, Marshfield, for Sarah & another.
Briana R. Cummings for Ulrich & another.
Robert E. Curtis, Jr., for the mother.
Erin Staab, Assistant Attorney General, for Department of Children and Families.
Dana C. Chenevert for Ellen.
Present: Green, C.J., Meade, & Sacks, JJ.
The mother (joined on appeal by four of the children)2 appeals from decrees of the Juvenile Court deeming her unfit to parent five of her children and terminating her parental rights.3 The mother further contends that a single justice of this court erred in denying her motion to stay this appeal to allow her to pursue a motion for new trial in the Juvenile Court. We affirm the denial of the mother's motion for a stay, rejecting the mother's contention that such requests should presumptively be allowed. In addition, after careful consideration of the record and the judge's findings, we affirm the decrees.
Background. The mother has a criminal history dating to 2004, including convictions of assault by means of a dangerous weapon and assault and battery on a police officer. She has also been the subject of five abuse prevention orders issued pursuant to G. L. c. 209A, brought by five different individuals. On December 27, 2012, the Department of Children and Families (department) filed a care and protection petition on behalf of Ulrich (born in 2006), Charles (born in 2008), Sarah (born in 2009), and Amy (born in 2011), after the mother was arrested for stabbing the father with a pair of scissors on December 26, 2012.4 The four children were present in the home during the incident and witnessed the stabbing. On the night of the incident, the mother admitted to police that she had stabbed the father.5 The Juvenile Court judge initially granted temporary custody of the four children to the maternal grandmother; later, on January 10, 2013, the judge granted temporary custody to a paternal aunt. However, after evidence of sexual and physical abuse of at least some of the children within the paternal aunt's home became apparent, the department obtained custody of the four children on May 20, 2013.
Ellen was born in March, 2013. In August, 2013, the mother (believing that the father had engaged in a romantic relationship with a neighbor's daughter) forced her way into the neighbor's apartment while making threats and brandishing a knife. The mother and the neighbor then went to the neighbor's daughter's house, where the mother attempted to break down the door. After arriving at the scene, police detected a strong odor of alcohol on the mother's breath, and a patfrisk discovered a seven-inch serrated knife in her pocketbook. The neighbor identified it as the knife with which the mother previously had threatened her. Following that incident, Ellen was removed from the mother's custody.
In July, 2013, Ulrich, who turned ten during the trial, and Charles, who turned eight during the trial, were both placed in a residential treatment facility (residential facility). By the time of trial, Ulrich had been placed in a foster home. Sarah, nearly seven years old by the end of trial, and Amy, who turned five years old during trial, were placed together in the department's foster care in May, 2013. In November, 2013, Sarah and Amy were placed in separate foster homes. Ellen was placed in a kinship foster home in February, 2014, where she remained at the time of trial. We reserve additional details concerning the individual children's circumstances for our discussion of the termination decrees concerning each of them.
As part of her service plan, the mother was required to undergo a psychological evaluation, the results of which were received by the department on November 7, 2013. The mother was diagnosed with mood disorder, posttraumatic stress disorder
, and polysubstance dependence. As of November, 2013, the mother had been working with an in-home therapist and was making some progress with regard to childhood trauma and her relationship with the father. In January, 2014, the department referred the mother to a residential program where she could be reunited with Sarah, Amy, and Ellen, but the mother chose not to enter that program. The mother stipulated to her unfitness to parent the children on March 26, 2014. By March, 2014, the mother's in-home therapist stated that the mother had been meeting with her on a weekly basis. In September, 2014, the mother entered a residential substance abuse treatment facility but was soon asked to leave after that facility designated her as a safety risk. By April, 2015, the mother was deemed to be in full compliance with her service plan and had improved her anger management and communication skills. She had also completed a parenting course and engaged in a parenting support group, and there were no longer substance abuse concerns. After a home visit on April 2, 2015, the court investigator reported that the mother's four-bedroom apartment was extremely clean and well kept, furnished with beds for the children, and was "nothing short of impressive."6 However, at the time of trial, the mother had not seen her mental health therapist in several months and missed a scheduled home visit the week before trial.
Visits between the mother and children ranged from successful to disastrous. The mother had a successful visit with Sarah, Amy, and Ellen on September 29, 2014. She had successful visits with Ulrich and Charles individually at the residential facility on December 16, 2014. She also had successful visits with Ulrich and Charles individually at the residential facility on January 30, 2015, and then with Sarah, Amy, and Ellen together on the same day. On December 23, 2015, the mother had a Christmas visit with all the children at the residential facility, which went well.7
However, there were also a number of tumultuous visits. A June 30, 2014, visit ended with three of the children running out of the visitation room and several of the children crying. On July 23, 2014, the mother had a visit with all five children. At that visit, the children were difficult to handle, several were running around the visitation area and crying, and Charles told one of his sisters that he was not going to talk to the mother "until she changes her attitude." In response, the mother told Charles, After a social worker cautioned the mother against aiming obscenities at the children, the mother stated, "Don't tell me about my fucking kids, you don't have kids, so you don't know." The mother also said, "[T]hese kids aren't [my] issue, let their workers deal with them, I'm fucking done." Three weeks later the department informed the mother that her visitation rights would be suspended as a result of this visit. At that time, the mother stated that she did not remember anything negative about the visit, and at trial she testified that she did not swear at the children, only agreeing with the statement that the visit "got ... a little out of control."8
On March 10, 2015, a visit between the mother, Sarah, and Amy went well until the mother whispered something to the girls that caused them to cry throughout the entire twenty-minute return ride to their day care program. On June 12, 2015, the mother had a visit with Ulrich and Charles, at which Ulrich became angry with the mother, refused to talk with her, and left early. A visit with all the children on August 20, 2015, to celebrate Ulrich's birthday ended with Charles throwing a tantrum and being carried away by staff members.9 At a visit on March 3, 2016, after Charles had left the visitation room crying, the mother pulled him from the arms of a counselor -- making physical contact with the counselor -- and brought him back into the visitation room while he gave the counselor a "thumbs down" signal. On June 23, 2016 -- one week before trial began -- the mother ended a visit after thirty-five minutes because the children were not taking part in an activity she had organized for them. Additionally, a visit scheduled with the girls for November 24, 2014, had to be canceled after the mother failed to confirm the visit on the preceding day.
The trial concerning the mother's and father's parental rights was held in the summer of 2016, and on November 23, 2016, the judge issued decrees terminating their parental rights. The mother appealed.
Discussion. 1. Motion for stay. After the mother's appeals from the termination decrees entered on our docket, the mother moved to stay appellate proceedings in order to raise a claim of ineffective assistance of counsel through a motion for new trial in the Juvenile Court. A single justice of this court denied the mother's motion. On appeal from that denial, the mother contends that the single justice should have allowed her to pursue the new trial motion in the Juvenile Court, without regard to a threshold assessment of her prospects for success.
A parent facing termination of parental rights is entitled to the effective assistance of counsel. See G. L. c. 119, § 29 ; Care & Protection of Stephen, 401 Mass. 144, 149-150, 514 N.E.2d 1087 (1987). In assessing a claim of ineffective assistance of counsel in such a case, we apply the familiar two-part test established in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Consistent with the approach taken in criminal cases, "[a]bsent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal." Care & Protection of Stephen, supra at 150, 514 N.E.2d 1087. Instead, where a party wishes to pursue a claim of ineffective assistance of counsel after the case has entered in an appellate court, the preferred approach is for the party claiming ineffective assistance to move...
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